FCC Attempts New Power Grab With Privacy Regulation Proposal

"The law is specifically is Section 222 of the Communications Act, but this was written with telephone networks in mind. This was designed to prevent the baby bells from taking competitor's information and using it in marketing," he said.
"That's different information, a different network, and the people were telephone providers," Brake said. "The FCC is trying to repurpose the statute now that they've put broadband into the same rules as telephone networks. Whether it's legally permissible, that's sure to be challenged," he said.
Of course, the whole reclassification move by the FCC has already been challenged and the hearings have been held. The U.S. Court of Appeals in Washington is expected to announce its ruling on those challenges to the legality of the Open Internet rule before the court ends its term in June.
The challengers were some major interests in the Internet ranging from US Telecom to the CTIA. A number of observers have said that the FCC is likely to lose its case in regards to wireless Internet access, but that the situation in regards to wired Internet is less clear.

"If the FCC prevails on the Open Internet case regarding the reclassification of broadband, then the FCC can do anything it wants about broadband and consumer protection," said Berin Szoka, president of TechFreedom, a non-partisan think tank. Szoka is one of those who thinks the FCC's Open Internet order will lose when it comes to wireless Internet access.

Szoka said that the FCC is essentially duplicating work of the Federal Trade Commission, which actually has the authority over those items. "Finally, what begins today as regulation of broadband providers will eventually grow to include other Internet companies, too—if only through the power the FCC has claimed to regulate all communications companies via Section 706 of the Communications Act," Szoka said.
"A sector-specific privacy rulemaking for broadband providers is misguided," Brake said in a prepared statement. "Under the FTC's enforcement of best practices and broadband provider policies, privacy protections are already well balanced with other values, such as cost, usability, or innovation. Moreover, a sector-specific rulemaking ignores privacy-protecting technologies like encryption and virtual networks, and the fact that all major broadband providers already allow consumers to control how their information is used."
At this point, the FCC's ability to actually enforce its privacy rule is in limbo and will remain that way until the courts rule on whether the Open Internet move is within its authority.
The FCC moves to reclassify the Internet and to regulate privacy do make one thing very clear. What's really missing is a legislative environment that defines what the FCC can do in regards to the Internet, and what it can't do. Until Congress does something, the FCC will continue to absorb the power it wants and there's not much to limit it.
Sadly, the ability of Congress to act on anything during this election year is seriously compromised.